In economic jargon, a Pareto optimal outcome is one in which you cannot improve any individual's position without thereby making another individual worse off. There's probably already a term in existence for the mirror opposite situation - one where every person loses out, and any other outcome would make someone else happier. But if there isn't already such a term, can I propose we call it a "Wilsonian distribution"?

Because the resignation of (now-former) Justice Bill Wilson from the Supreme Court looks likely to leave no one at all particularly satisfied.

Most obviously, it is a personal and professional tragedy for Bill Wison himself. Not only is there the loss of his judicial career - a career he gave up a practice worth millions to pursue, which he is prevented from now returning to - but there is the inevitable stain on his reputation left by this affair. No matter what he goes on to accomplish in the next decades of his life, and no matter what great and good things he has done until now, he will know that the first paragraph of his obituary inevitably will mention that he "resigned in disgrace" from the Supreme Court.

The prospect of Bill Wison facing this fate despite there being no definitive finding of substantial wrongdoing (as opposed to somewhat careless practice) on his part will infuriate those who supported him. We've already seen Pundit's own Deborah Coddington bemoan the fact on this comment thread that he was "hounded" into resigning: "shame on NZ." It's a position I have some sympathy for - as I previously wrote:

All of which may seem a little unfair. After all, even judges should be entitled to due process and the observation of natural justice when accused of wrongdoing. But the judgment that really matters may be the one delivered in the court of public opinion. And that is a forum where justice can be an exceedingly rare virtue.

"Ah!" will say others. "But the reason there was no definitive finding of wrongdoing was because Bill Wison so doggedly fought every attempt to uncover what actually happened before the original Court of Appeal hearing and in subsequent disclosures to his Supreme Court colleagues. After all, if he really did nothing wrong and had nothing to hide, why did he go running off to the High Court to try and prevent a Judicial Conduct Panel holding public hearings intp the matter? That's hardly the act of an innocent man!"

(As it happens, I have a bit of sympathy for this position as well. I think Bill Wilson's decision to seek judicial review of the Judicial Conduct Commissioner's decision to refer the matter to a Judicial Conduct Panel was a grave mistake. No matter what the legal niceties of the case - and despite his technical win - it looked like a lawyer's way to escape scrutiny, and that (I think) helped cement a public view that there must be some sort of wrongdoing at the bottom of this affair.)

However, those who really believe there was wrongdoing - headed by the NBR in full crusader mode - won't be all that happy with this outcome either. For one thing, they are now denied their (effective) day in court as the Judicial Conduct Panel unwinds the truth of the matter. For another, the "Golden handshake for embattled judge" headline is going to rankle. If you really think Bill Wilson acted so unethically that he ought to be removed from office, the fact he is walking away with a year's salary plus leave entitlements, as well as his (quite considerable) legal fees paid in full, will seem like an awfully sweet deal.

So why did the Government - and acting Attorney-General Judith Collins in particular - agree to it? It will argue that a payout of somewhere close to $1 million is a cheap way out of this mess, and that it is much less than would have been spent had the matter carried on for another 12-to-18 months. After all, Bill Wilson would have kept pulling down his salary in any case and the cost of running a Judicial Conduct Panel would have been far greater than meeting his lawyer's fees.

Such economic logic, however, doesn't provide much solace against the hostile questioning of media figures like Mary Wilson on tonight's "Checkpoint" programme. She tore into the acting Attorney-General, demanding to know why, if Bill Wilson felt his behaviour requires his resignation, the Government thinks it appropriate to pay him out nearly $1 million. During this interview I felt the oddest sensation ... I think it might have been a stirring of sympathy for Judith Collins. That is something I never thought I would ever experience, and the fact that I did makes me think that she can't be enjoying the position she is in on this affair.

Surely, though, there is one actor in this drama that can be satisfied with how it has ended. The New Zealand justice system has seen a serious accusation leveled against one of the top judges in the country, has allowed that accusation to be investigated, and has seen the judge's removal without any overt interference from the politicians in Government. So isn't the country as a whole a winner?

Well, yes - I guess you can spin that story. But I'm not aware of anyone connected with the New Zealand legal profession that is particularly happy with how the Bill Wilson saga unfolded. And if you look at the number of complaints received by the Judicial Conduct Commissioner in the year to 31 July 2010 - 223, or more than double the number from just 2 years ago - you can see another outcome. Now that this story has made people aware of how to complain about judges, they are doing so in ever increasing numbers.

Comments (16)

Did you miss the High Court finding there was a ‘sufficiently plausible possibility’ that Wilson ‘deliberately decided to withhold information from his own Court when he knew that the information might be relevant to the Court’s decision, and when others were advising and encouraging him to disclose it’.

It should have been plain to the judge and his that if such a finding was sheeted home by the JCP then he was at real peril of facing criminal charges. By resigning now he probably avoids that possibility unless the Police of their own motion decide to investigate the 'plausible possibility' of the deliberate witholding of information known to be relevant.

I'm not sure that, even if that were shown to have occured, criminal charges would have followed. The point the High Court was making was that there are allegations of sufficient seriousness to (if proven) warrant a Judge's removal from the bench - hence a basis for allowing the judicial conduct complaint process to continue.

I'm not sure that criminal charges would have followed either, but any competent lawyer would be obliged to tell their client that, if that finding of a 'plausible possiblity of deliberate withoulding of information known to be relevant' by the High Court crystalised then Wilson was at very least at serious peril of criminal charges being laid under s117(e) of the Crimes Act.

Thoughts on the possibility of a "perverting the course of justice" charge? I think not-at-all, and it's just Judith Collins trying to prove the Government is tough on crime (even where there isn't any).

And given this will now be put to one side so neatly and quietly, what does that say to our legal elite about their accountability and responsibilites to the public? I was horrified to read Farmer's comments putting mateship above the good of the system. Will the lesson be learnt that the public expect more from that estate?

First, the course of justice is 'perverted' wherever something goes wrong. The Saxmere No 1 decsion was undoubtedly 'perverted' in that sense of the word as demonstarted by the need to recall the decision when fuller facts became known. 'Perverting' only attracts criminal liability when it is ocasioned by a 'wilful attempt'. 'Attempt' in this context does not import the ususal standards for an 'attempt' set out elsewhere in the Crimes Act; it simply requires 'conduct'.

So, if it was was Wilson's lack of disclosure when under a duty to disclose, he attempted to pervert the course of justice. That, however, is still not criminal unless the attemtp was 'wilful'. What does wilfulness entail: well, at a guess, I would say wilfulness would be made out if the judge 'knowingly and deliberately withheld' as set out in paragraph [91] of the High Court judgment.

Does a 'plausible possibility' meet the standard for prima facie evidence? We won't know unless we see the transcripts that were discussed in camera in the review proceedings. But I would hazard a guess that the High Court is likely to have chosen its words carefully and to have erred on the side of understatement rather than overstatement. Hence, I think it fair to assume that if they say, having studied the judge's interview with the commissioner, that there is a 'plausible possibility that the judge deliberately and knowingly withheld information known to be relevant to his court at a time when others were encouraging disclosure' then the reality is that ther is probably a 'very palusible possibility'. That would semantically amount to a prima facie case. At the very least there should be an investigation by the Police as this matter strikes at the heart of the administartion of justice. The Courts have, for very good reason, set a low threshold for conduct that amounts to an offence under s117(e) and I think the judge should be investigated for it.

Thoughts on the possibility of a "perverting the course of justice" charge? I think not-at-all.

I concur.

Not least because if this was what would alleged, we'd never have had a JCC approach, it would have started with the police, and following any conviction, he could have been removed from office by Parliament without reference to a JCP.

"Not least because if this was what would alleged, we'd never have had a JCC approach, it would have started with the police, and following any conviction, he could have been removed from office by Parliament without reference to a JCP."

I think the prevailing wisdom since the Lionel Murphy and Martin Beatty affairs is that criminal investigations should come after the removal processes so they aren't influenced by acquittals entered because charges aren't proven beyond a reasonable doubt.

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